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Gunning  System  | 

vs.  V Bill  for  Injunction. 

City  of  Chicago  J 

In  the  Superior  Court  ot  Cook  County, 

In  Chancery : 

Before  HON.  AXEL  CHYTRAUS,  Judge. 


ARGUMENT  AND  BRIEF  OF 

BYRON  BOYDEN, 

Solicitor  for  Defendant,  and  Counsel  for  the 

MUNICIPAL  ART  LEAGUE 

OF  CHICAGO. 

Hamlin  & Boyden, 

OF  COUNSEL. 


BILL-BOARb  CASE. 

■ ' \ , -■  ' 

FACTS  AND  LAW. 


SUPPLEMENT 


We  beg  leave  to  lay  before  you,  for  your  consideration, 
this  pamphlet  on  the  subject  of  bill-boards,  and  to  call  to 
your  notice  the  proposed  legislation  for  the  purpose  of  regu- 
lating the  growing  evil  of  sign  advertising. 

The  following  bill  has  been  introduced  in  the  General 
Assembly  at  the  present  session: 

“ An  Act  to  extend  the  powers  of  the  City  Council  in  cities 
and  the  President  and  Board  of  Trustees  in  villages  and  incor- 
porated towns  T 

Section  i.  “Be  it  enacted  by  the  People  of  the  State 
of  Illinois , represented  in  the  General  Assembly,  That 
the  City  Council  in  cities  and  the  President  and  Board  of 
Trustees  in  villages  and  incorporated  towns  shall  have  the 
power  to  license  street  advertising  and  bill-board  companies, 
and  to  regulate  and  prohibit  signs  and  bill-boards  upon 
vacant  property  and  upon  buildings  advertising  other  busi- 
ness than  that  of  the  occupant.” 

The  regulation  of  bill-boards  is  a matter  that  requires 
police  supervision  and  inspection,  for  the  reason  that  these 
stiuctures  may  become  a menace  to  the  safety  and  health  of 
the  people. 

The  State  of  Illinois,  under  its  police  power,  has  the 
authority  to  regulate  this  business,  and,  if  circumstances  arise 
making  it  necessary,  the  State  could  prohibit  the  business. 
Granting  that  such  circumstances  might  never  arise,  still  it  is 
within  the  bounds  of  possibility.  The  Act  does  not  prohibit 
anything;  it  merely  delegates  to  the  city  the  power  inherent 
in  the  State. 

3 


Our  Committee  desire  to  call  your  attention  to  the  fol- 
lowing: 

First.  To  the  ordinance  passed  by  the  City  Council  of 
the  City  of  Chicago  on  July  9,  1900,  regulating  bill-boards. 
(See  page  17  of  the  following  brief.) 

The  City  Council,  the  disinterested  people  of  Chicago, 
and  the  Municipal  Art  League  are  of  the  firm  conviction 
that  the  main  provisions  of  this  ordinance  are  reasonable, 
equitable  and  fair  to  the  bill-board  companies,  the  city  and 
the  citizens.  The  provision  limiting  the  length  of  the  bill- 
board should  be  more  liberal;  in  other  respects  it  does  not 
restrict  or  interfere  with  the  business  of  sign  advertising 
companies  further  than  is  actually  necessary  for  the  safety, 
health  and  comfort  of  the  people. 

Second.  To  the  decision  of  Judge  Chetlain,  of  the 
Superior  Court  of  Cook  County,  holding  this  ordinance 
legal  with  the  exception  of  Sections  4 and  5.  (See  page  27 
of  brief.) 

Third.  To  the  language  of  Hon.  G.  Fred  Rush,  Master 
in  Chancery  of  the  Superior  Court,  holding  the  provisions  of 
the  ordinance  reasonable  and  fair,  with  the  exception  of 
Sections  4 and  5. 

Mr.  Rush  spent  a great  deal  of  time  and  attention  to  the 
questions  involved,  and  his  opinion  is  entitled  to  great  con- 
sideration. (See  pp.  19-26  of  brief.) 

Fourth.  To  Section  4 of  the  ordinance. 

This  section  provides  for  the  consent  of  the  residents  and 
property  owners  on  boulevards,  pleasure  driveways  and/resi- 
dence streets  before  a bill-board  can  be  erected. 

We  earnestly  contend  that  this  provision  is  reasonable 
and  just  and  should  be  incorporated  in  any  ordinance  regu- 
lating bill-boards. 

We  are  advised  that  unless  the  legislature  pass  the  Act 
now  pending  before  it,  containing  the  word  “ prohibit,”  the 


4 


LS ? 
Bfc,? 


validity  of  a section  containing  a provision  similar  to  Section 
4 in  any  ordinance  hereafter  to  be  passed,  would  be  ex- 
tremely doubtful.  That  every  city  in  the  State  should  have 
the  power  to  pass  an  ordinance  restricting  the  use,  by  bill- 
board companies,  of  property  abutting  upon  its  boulevards, 
pleasure  driveways,  residence  streets  and  in  front  of  its  parks, 
must  be  admitted  by  every  unprejudiced  man. 

A large  amount  of  money,  raised  by  taxation,  is  expended 
every  year  on  parks  and  boulevards,  and  all  cities  should 
have  the  power  to  protect  them  from  depreciation  and 
defacement. 


FiIth.  It  is  conceded  that  Section  5 of  the  ordinance 
is  unreasonable.  This  defect  is  easily  remedied. 


Sixth.  To  the  present  inadequate  powers  of  the  City 
Council  under  the  Act  for  the  incorporation  of  cities  and 
villages,  relating  to  the  subject  matter.  (See  p.  19  of  brief.) 

Seventh.  The  City  Council,  under  the  Cities  and  Vil- 
lages Act,  now  has  the  power  to  prohibit  theatricals  and  other 
exhibitions,  shows  and  amusements.  Under  this  power  the 
city  has  passed  a reasonable  ordinance  regulating  theatres. 
No  attempt  has  ever  been  made  to  prohibit  theatrical 
entertainments. 

A reasonable  and  fair  law  relating  to  and  regulating  bill- 
boards is  all  the  people  desire,  and  we  can  say,  without  fear 
of  contradiction,  that  all  the  citizens  of  the  State  of  Illinois, 
from  its  northern  boundary  to  the  Ohio  River,  demand  such 
a law. 

Eighth.  This  Committee  is  in  possession  of  certain  in- 
formation that  the  bill-board  companies  known  as  the 
Gunning  System,  the  American  Posting  Service  and  the 
Cusack  Company  now  are  maintaining  within  the  limits  of 
the  City  of  Chicago  over  205,000  lineal  feet  of  wooden  bill- 
boards of  a height  not  less  than  ten  feet. 


5 


FORTY  MILES  OF  BILL-BOARDS  IN  CHICAGO. 

It  is  worth  while  to  think  seriously  of  this  matter. 

Ninth.  No  hospital  or  livery  stable  can  be  erected  in  the 
City  of  Chicago  without  first  obtaining  the  written  consent 
of  the  owners  of  property  and  residents  in  the  vicinity 
where  the  hospital  or  stable  is  proposed  to  be  erected. 
While  this  is  an  important  law,  a similar  law  in  relation  to 
bill-boards  would  be  of  far  greater  importance.  In  com- 
parison with  bill-boards,  hospitals  and  livery  stables  are  few 
and  far  between,  and  all  three  may  reasonably  be  said  to 
come  within  the  general  police  powers  relating  to  the  com- 
fort, health  and  safety  of  the  citizens. 

Tenth.  We  beg  to  call  your  attention  to  the  decision  of 
the  New  York  Court  of  Appeals  in  the  case  of  City  of 
Rochester  vs.  West.  (See  pp.  35-40  of  brief.) 

The  City  of  Rochester  passed  an  ordinance,  which  is  up- 
held by  the  Court  of  Appeals,  prohibiting  the  erection  of  a 
bill-board  exceeding  six  feet  in  height  without  the  express 
consent  of  the  City  Council. 

The  ordinance  we  advocate  is  far  more  liberal  in  its  terms 
than  the  Rochester  ordinance. 

In  conclusion,  we  beg  to  call  your  attention  to  the  im- 
portance of  the  word  “ prohibit  ” in  the  proposed  Act,  and  to 
reiterate  our  belief  that  all  cities  in  the  State  should  be  given 
power  to  protect  their  parks,  boulevards,  pleasure  driveways 
and.  residence  streets,  and  that  the  citizens  should  have  a voice 
in  this  matter,  inasmuch  as  it  is  their  money  which  is  used 
to  make  these  streets  and  parks  the  beautiful  places  in  every 
city.  We  ask  you  to  write  to  the  member  of  the  State  Legis- 
lature representing  your  district,  urging  the  passage  of  this 
bill. 

Yours  respectfully, 

WILLIAM  H.  BUSH,  Chairman . 
HONORE  PALMER, 

REUBEN  H.  WARDER, 

J.  C.  PATTERSON, 

BYRON  BOYDEN, 

MRS.  HERMAN  J.  HALL, 

Bill-Board  Committee , Municipal  A rt  League. 

6 


Gunning  System  ) 

vs.  I Bill  for  Injunction 

City  of  Chicago  ) 

In  Superior  Court  of  Cook  County- 
In  Chancery : 

Before  HON.  AXEL  CHYTRAUS,  Judge. 


ARGUMENT  ON  FACTS. 

This  is  a bill  for  an  injunction  against  the  City  of 
Chicago,  brought  by  a bill-board  company,  known  as 
the  Gunning  System,  for  the  purpose  of  perpetually 
enjoining  and  restraining  the  City  of  Chicago  from  en- 
forcing an  ordinance  in  relation  to  bill-boards  duly 
passed  by  the  City  Council,  and  also  to  forever  enjoin 
and  restrain  the  city  from  interfering,  in  any  manner, 
with  the  vast  number  of  frame  bill-boards  now  erected 
throughout  the  city,  or  from  interfering  with  any  new 
bill-boards  the  complainant  company  may  see  fit  to 
erect. 

The  testimony  before  the  Master,  at  the  time  of  the 
hearing,  discloses  that  the  complainant  was  the  owner 
of  a large  number  of  wooden  bill-boards,  used  for  ad- 
vertising purposes,  measuring  from  twelve  to  thirty- 
six  feet  in  height,  and  from  twelve  to  four  hundred 
feet  in  length,  all  of  them  having  a superficial  area 
in  excess  of  one  hundred  square  feet.  They  are  all 


7 


constructed  of  pine  boards,  very  much  like  an  ordi- 
nary fence.  As  compared  with  ordinary  building 
structures  it  cannot  be  said  that  these  boards,  carried 
to  the  height  aforesaid,  and  situated  at  or  near  the 
sidewalks  and  composed  of  ordinary  fence  boards,  are 
safe,  substantial  or  permanent. 

During  the  four  days  of  oral  argument  in  this  case 
the  meagre  facts  in  this  record  were  not  thoroughly 
touched  upon  by  any  counsel.  It  now  becomes  our 
duty  to  place  before  the  court  the  simple  facts  from 
which  we  will  endeavor  to  demonstrate  that  this  bill 
should  be  dismissed  for  want  of  equity. 

Before  the  first  bill-board  was  erected  the  following 
ordinances  were  in  force  in  the  City  of  Chicago,  and 
had  been  in  force  for  a great  many  years,  and  have  re- 
mained, unquestioned,  the  law.  No  one  can  be  found 
who  would  have  the  temerity  to  question  their  validity, 
for  an  instant.  Full  power  was  delegated  by  the  State 
Legislature  to  the  City  Council  to  pass  these  ordi- 
nances, and  they  have  the  same  force  and  effect  as 
laws  passed  by  the  Legislature  of  the  State.  (Intro- 
duced in  evidence.  Record,  pp.  47-129.) 

FRAME  BUILDINGS. 

272.  Fire  Limits.  The  fire  limits  of  the 
City  of  Chicago  shall  be  as  defined  by  existing 
ordinances.  No  wall,  structure , building,  or 
part  thereof  shall  hereafter  be  built,  con- 
structed, altered  or  repaired  within  the  fire 
limits  of  the  City  of  Chicago  except  in  con- 
formity with  the  provisions  of  this  chapter. 

No  building  already  erected  or  hereafter  to  be 
built  within  said  fire  limits  shall  be  raised, 
altered  or  built  upon  in  such  manner  that, 
were  said  building  wholly  rebuilt  or  con- 
structed after  the  passage  of  this  chapter,  it 
would  be  in  violation  of  any  of  its  provisions. 

8 


The  provisions  of  this  chapter  as  to  the 
strength  and  stability  of  timber  constructions 
shall  also  apply  to  the  construction  of  frame 
buildings  outside  of  the  fire  limits. 

464.  Wood  Fence — Height.  No  wooden 
fence  shall  be  higher  than  eight  feet  above 
the  sidewalk  grade,  or  eight  feet  above  the 
surface  of  the  ground  where  no  grade  is  es- 
tablished. 

282.  Sheds  — Size  — Location  — Use. 

Sheds  not  exceeding  fourteen  feet  in  height 
from  the  ground  at  the  highest  part  thereof, 
and  not  exceeding  two  hundred  and  fifty-six 
feet  in  area,  with  an  incombustible  roof,  may 
be  constructed  of  wood;  such  sheds  shall  not 
be  located  on  the  front  part  of  any  lot,  nor 
shall  they  be  used  as  a dwelling,  or  an  addi- 
tion to  a dwelling  house,  or  for  any  business 
purposes  whatever,  nor  shall  more  than  one 
shed  be  erected  on  any  one  building  lot  of 
twenty-five  feet. 

463.  Signs  on  Buildings.  All  signs 
placed  on  any  building  above  the  level  of  the 
third  story  of  the  same  shall  be  made  of  in- 
combustible material.  Wooden  signs  shall 
not  be  more  than  two  feet  wide. 

The  word  “ structure,”  as  used  in  section  272  of  the 
above  ordinances,  is  defined  by  Anderson  in  his  legal 
dictionary  to  be  “ some  permanent,  stationary  erec- 
tion.” This  definition  thoroughly  covers  the  structures 
known  as  bill-boards. 

As  was  said  above,  these  four  ordinances  have 
been  the  law  in  the  City  of  Chicago  for  years,  and 
from  them  maybe  deduced  the  following  evident  facts: 

1.  No  private  person  can  erect  a frame  building  or 
structure  on  his  private  property  within  the  fire 
limits. 


9 


2. 


No  private  person  can  erect  a fence  around  or  in 
front  of  his  property,  either  at  the  sidewalk  line 
or  back  from  it,  of  a height  of  over  eight  feet. 

3.  No  private  person  can  erect  a frame  shed  on  his 

private  property,  except  it  be  situated  in  the 
rear  of  his  lot,  and  it  must  not  be  of  over  256 
square  feet  in  superficial  area. 

4.  No  private  person  can  attach  a wooden  sign  to  his 

house  or  building  of  over  two  feet  in  width. 

Notwithstanding  these  laws  and  ordinances,  the 
Gunning  System,  the  complainant  in  this  case,  asking 
for  relief  in  a court  of  equity,  has  succeeded  in  erect- 
ing and  maintaining  avast  number  of  frame  bill-boards 
that  violate  every  single  provision  of  the  four  ordi- 
nances above  mentioned,  being  every  law  in  force  in 
the  City  of  Chicago  in  relation  to  the  subject  matter. 

The  Gunning  System  is  above  the  law.  Strange  to 
say,  some  three  hundred  of  the  bill-boards  erected  by 
the  Gunning  System,  contrary  to  the  ordinances  of  the 
city,  were  erected  under  permits  issued  by  the  Com- 
missioner of  Buildings. 

These  permits,  introduced  in  evidence  (record,  p.  6), 
are  very  peculiar  and  show  a strange  state  of  affairs 
existing  in  the  building  department  of  the  city. 

The  following  are  fac-simile  copies  of  these  permits: 

“ No.  1149. 

BUILDING  PERMIT. 

OFFICE  OF  THE  COMMISSIONER  OF  BUILDINGS. 

Chicago,  5-19-1899. 

Permission  is  hereby  granted  to  R.J.  Gunning  & Co. 
to  erect  a fence  12  ft.  high  & 500  ft.  long , feet  front, 
by feet  deep, feet  high  from 


10 


ground  level  to  highest  part  thereof 

No.  S.  W.  cor.  58th  Str. 

and  Grand  Bid.  Street. 

This  permit  is  granted  upon  the  express  condition 
that  the  said  R.  J.  Gunning  & Co.  in  the  erection  of 
said  building  shall  conform  in  all  respects  to  the 
Ordinances  of  the  City  of  Chicago,  regulating  the  con- 
struction of  buildings  in  the  city  limits,  and  may  be 
revoked  at  any  time  upon  the  violation  of  any  of  the 
provisions  of  said  Ordinance. 

By  order  of  the  Commissioner  of  Buildings. 

Jos.  Me  Andrews , 

Commissioner  of  Buildings.” 


“ No.  1195. 

BUILDING  PERMIT. 

OFFICE  OF  THE  COMMISSIONER  OF  BUILDINGS. 

Chicago,  5-22-1899. 

Permission  is  hereby  granted  to  R.  J.  Gunning  & Co. 
to  erect  a fence  12  ft.  high  & joo  ft.  long , feet  front, 

by feet  deep,  feet  high 

from  ground  level  to  highest  part  thereof 

No.  N.  E.  cor.  59th  & Cottage 

Grove  Ave.  Street. 

This  permit  is  granted  upon  the  express  condition 
that  the  said  R.  J.  Gunning  & Co.  in  the  erection  of 
said  building  shall  conform  in  all  respects  to  the  Ordi- 
nances of  the  City  of  Chicago,  regulating  the  construc- 
tion of  buildings  in  the  city  limits,  and  may  be 
revoked  at  any  time  upon  the  violation  of  any  of  the 
provisions  of  said  Ordinance. 

By  order  of  the  Commissioner  of  Buildings. 

Jas.  Me  Andrews, 

Commissioner  of  Buildings.” 


11 


“ No.  784. 


BUILDING  PERMIT. 


OFFICE  OF  THE  COMMISSIONER  OF  BUILDINGS. 

Chicago,  4-28-1898. 

Permission  is  hereby  granted  to  The  R.  J.  Gunning 
& Co.  to  erect  a fence  12  ft.  high  & goo  ft.  long , feet 
front,  by  130  ft.  on  Michigan  Ave.,  150  ft.  on  43rd,  Str., 

feet  deep, feet  high  from  ground  level  to 

highest  part  thereof No.  N.  W.  cor.  Michi- 

gan Ave  & 43rd  Street. 

This  permit  is  granted  upon  the  express  condition 
that  the  said  R.  J.  Gunning  & Co.  in  the  erection  of 
said  building  shall  conform  in  all  respects  to  the 
Ordinances  of  the  City  of  Chicago,  regulating  the  con- 
struction of  buildings  in  the  city  limits,  and  may  be 
revoked  at  any  time  upon  the  violation  of  any  of  the 
provisions  of  said  Ordinance. 

By  order  of  the  Commissioner  of  Buildings. 

Jas.  Me  Andrews, 

Commissioner  of  Buildings.” 

It  will  be  observed  that  the  permits  are  for 
FENCES  12  feet  high  and  300  feet  long.  The  word 
“ fence”  is  written  in  the  permit  with  pen  and  ink  by 
the  clerk  issuing  the  permit. 

These  permits  violate  the  ordinance  prohibiting 
frame  structures  within  the  fire  limits;  they  violate  the 
ordinance  prohibiting  fences  over  eight  feet  in  height; 
and  they  violate  the  ordinance  prohibiting  sheds  being 
over  256  square  feet  in  superficial  area. 

They  were  obtained  by  fraud,  by  having  a political 
“ pull,”  by  the  accommodating  methods  of  the 
Building  Commissioner. 

The  following  is  the  testimony  of  Deputy  Building 
Commissioner  O’Shea  concerning  these  permits: 


12 


Q.  The  subsequent  permits  that  were 
issued,  which  you  say  were  signed  by  Com- 
missioner McAndrews  and  referred  to  in  your 
testimony-in-chief,  was  there  any  authority 
under  the  city  laws  or  ordinances  for  the  issu- 
ing of  those  permits? 

A.  None,  whatever. 

Q.  State  whether  or  not  there  was  any 
special  order  or  direction  from  any  authority 
of  the  city  prohibiting  the  issuing  of  permits 
for  building  fences  or  sign-boards  over  eight 
feet  high. 

A.  The  Mayor  issued  orders  for  bill- 
boards to  be  erected  not  to  exceed,  I think, 
12  feet  high,  and  that  they  should  stand  three 
feet  off  the  ground  from  the  lower  edge  of  it. 

Q.  If  this  permit  authorized  the  placing 
of  any  signs  at  the  place  named,  did  you  have 
any  authority  under  the  ordinances  of  the  city, 
or  in  any  other  way,  to  authorize  the  placing 
of  signs  at  this  point? 

A.  No,  sir.  I had  no  authority  to  do  so, 
only  fences  eight  feet  high,  unless  I got  in- 
structions from  the  Commissioner.  It  must 
have  been  done  by  orders  issued  by  him  or 
there  would  not  have  been  any  permit  issued. 
I asked  the  chief  permit  clerk  who  authorized 
the  issuing  of  those  permits,  for  I knew  that 
the  ordinance  did  not,  and  he  said  the  orders 
must  have  come  direct  from  the  Commissioner 
of  Buildings.  Then  I went  to  the  bookkeeper 
and  I asked  him  was  there  any  record  of  this, 
and  he  said  these  permits  were  all  issued  as 


13 


fences  not  to  exceed  12  feet.  That  is  the  first 
that  I had  known  that  the  records  were  kept 
in  that  way.  I supposed  the  record  was  kept 
for  bill-boards. 

Q.  Can  you  state,  then,  why  these  permits 
were  issued? 

A.  Those  men  wanted  to  get  permission 
to  put  up  those  signs  and  the  ordinance  did 
not  give  us  any  right  to  do  so,  and  I am  satis- 
fied that  the  Commissioner  of  Buildings  did 
it  to  accommodate  the  men.  He  let  them  put 
them  up.  (Record,  pp.  38-46.) 

This  testimony  tells  the  story — comment  on  it  is 
unnecessary.  The  officers  of  the  Gunning  System 
knew  they  were  not  entitled  to  any  such  permits; 
O’Shea  knew  it,  the  clerks  in  the  office  knew  it,  and 
the  Building  Commissioner  knew  he  was  violating  the 
law  and  issuing  permits  merely  for  the  purpose  of 
blinding  the  police  department  and  deceiving  the  resi- 
dents in  the  locality  where  the  proposed  bill-board 
was  to  be  erected.  It  was  a fraud  on  the  people, 
and  should  not  be  countenanced  by  a court  of  equity 
for  an  instant. 

In  deference  to  Mayor  Harrison  the  writer  desires 
to  say  that  he  had  the  pleasure  of  being  one  of  a 
committee  of  gentlemen  of  the  Art  League  who  called 
upon  the  Mayor  of  the  City  of  Chicago  to  present 
their  views  in  reference  to  the  bill-board  nuisance,  and 
to  ask  his  assistance  in  abating  or  controlling  the  evil. 
During  the  course  of  the  conference  a reference  was 
made  to  the  testimony  of  O’Shea,  and  the  part  above 
quoted  was  read.  The  writer  then  said:  “ Mr.  Mayor, 
if  any  of  the  gentlemen  here  thought  that  such  an 
order  emanated  from  the  Mayor’s  office  we  would  not 


14 


be  here.  On  the  contrary,  we  distinctly  say  that  we 
believe  no  such  order  was  ever  issued  by  you.  That 
such  an  order  was  issued  by  some  one  there  is  no  doubt, 
and  the  truth  is  it  originated  in  the  brain  of  one  “ Jim  ” 
McAndrews,  the  politician,  at  that  time  holding 
the  office  of  Building  Commissioner.”  Mayor  Harri- 
son said:  “ Gentlemen,  the  only  order  I ever  issued 
was  after  the  passage  of  the  bill-board  ordinance,  and 
my  order  then  was  to  issue  no  permit  except  in  strict 
compliance  with  that  ordinance.”  The  Mayor  then 
intimated  that  he  was  in  sympathy  with  the  movement 
to  regulate  the  bill-boards,  but  that,  as  the  matter  was  in 
court,  his  hands  were  tied  until  a decision  .had  been 
reached. 

Any  layman  will  immediately  perceive  from  read- 
ing the  foregoing  that  the  regulation  of  bill-boards 
is  wholly  in  the  power  of  the  Mayor  and  his  building 
department,  taking  the  law  as  it  was  before  the  pass- 
age of  the  so-called  bill-board  ordinance  in  controversy 
in  this  case.  No  one,  unless  he  violates  the  law,  can 
build  a structure  in  the  City  of  Chicago  without  first 
obtaining  a permit  for  such  construction.  The  Gun- 
ning System  recognizes  this  as  the  law,  else  why  make 
arrangements  with  a political  building  commissioner 
to  issue  it  permits?  By  using  his  power  the  Mayor 
could  force  the  bill-board  companies  to  bow  to  the 
law  and,  if  thought  necessary  and  convenient,  force 
them  to  agree  to  an  ordinance  satisfactory  to  the  citi- 
zens and  such  an  one  as  would  hold  the  bill-boards 
within  bounds  and  go  a long  ways  towards  making  our 
city  what  it  should  be  instead  of  an  eyesore. 

The  Mayor  could,  under  the  law  as  it  existed  prior 
to  the  passage  of  this  bill-board  ordinance,  refuse  to 
allow  a single  wooden  bill-board  to  be  erected  within 


the  fire  limits,  and  the  courts  would  sustain  him  in  this 
refusal. 

During  the  oral  argument  in  this  case  nearly  a day 
was  occupied  by  counsel  for  complainant  in  arguing 
that  the  ordinance  in  controversy  in  this  case  was  void 
on  account  of  unjust  discrimination. 

Unjust  Discrimination!  Yet  the  Gunning  System 
can  erect  frame  structures  12  feet  high  and  300  feet 
long,  and  in  many  instances  24  and  36  feet  in  height 
(Master’s  report,  p.  3),  when  a citizen  is  compelled, 
by  the  law,  to  keep  his  fences  within  8 feet  in  height; 
his  shed  within  256  square  feet  superficial  area;  his 
signs,  on  a building,  not  over  2 feet  wide;  and  his  struc- 
tures and  buildings  of  fire-proof  material  within  the 
fire  limits.  Let  a citizen  build  a fence  or  a shed  over 
the  limit  prescribed  by  law,  and  the  city  officials  will 
order  it  torn  down.  Why?  To  guard  against  the  ca- 
lamities of  fire.  Chicago  has  had  two  experiences  and 
she  does  not  want  another. 

There  is  no  intention  of  forcing  these  companies 
out  of  business,  but  they  must  erect  fire-proof 
bill-boards  of  reasonable  dimensions,  and  some  reason- 
able restriction  must  be  placed  upon  their  erection  on 
property  abutting  upon  the  boulevards,  parks,  pleasure 
driveways  and  residence  streets. 

Let  us  consider  here  just  what  the  City  of  Chicago 
contemplates  in  the  regulation  of  the  bill-boards. 

The  following  is  the  admirable  ordinance  drafted 
and  introduced  into  the  City  Council  by  Alderman  Pat- 
terson, of  the  Twelfth  Ward,  and  which  was  passed  by 
that  body  after  due  consideration.  He  is  entitled  to  a 
great  deal  of  credit  for  formulating  and  being  the 
father  of  this  ordinance.  It  is  fair  and  reasonable  in 
its  terms  to  both  the  city  and  the  bill-board  companies 
in  its  main  features. 

16 


Be  it  ordained  by  the  City  Council  of  the  City  of  Chicago : 

Section  1.  All  signs  or  bill-boards  other  than  those 
painted  or  erected  upon  any  building  shall  be  limited 
in  their  superficial  area  to  100  square  feet,  and  shall  be 
constructed  of  sheet  or  galvanized  iron,  or  some 
equally  non-combustible  material,  and  such  signs  or  bill- 
boards shall  not  be  located  nearer  than  twenty-five 
(25)  feet  back  of  the  front  line  of  the  lot  whereon  the 
same  is  to  be  constructed;  provided , that  signs  not  to 
exceed  twelve  (12)  square  feet  each  may  be  made  of 
wood,  but  such  signs  shall  in  all  other  respects  comply 
with  above  section. 

Section  2.  No  such  sign  or  bill-board  shall  be  con- 
structed at  a greater  height  than  ten  (10)  feet  above  the 
level  of  the  adjoining  streets,  and  the  base  of  the  sign 
or  bill-board  shall  be  in  all  cases  at  least  three  (3)  feet 
above  the  level  of  the  adjoining  streets;  in  case  the 
grade  of  adjoining  streets  has  not  been  established,  no 
sign  or  bill-board  shall  be  constructed  at  a greater 
height  than  ten  (10)  feet  above  the  ground. 

Section  3.  No  such  sign  or  bill-board  shall  be 
erected  within  five  (5)  feet  of  any  other  sign  or  bill-board, 
and  each  such  sign  or  bill-board  shall  have  independent 
support. 

Section  4.  No  such  sign  or  bill-board  shall  be 
erected  upon  or  along  any  boulevard  or  pleasure  drive- 
way, or  in  any  street  where  three-quarters  ( % ) of  the 
buildings  in  such  street  are  devoted  to  residence  pur- 
poses only,  unless  the  person  or  persons  desiring  to 
erect  such  sign  or  bill-board  shall  first  have  secured  the 
consent,  in  writing,  of  three-quarters  (%)  of  the  resi- 
dence and  property-owners  on  both  sides  of  the  street 


17 


in  the  block  where  it  is  desired  to  erect  such  sign  or 
bill-board. 

Section  5.  All  owners  of  signs  or  bill-boards 
erected  before  the  passage  of  this  ordinance,  which  signs 
or  bill-boards  have  a superficial  area  exceeding  one  hun- 
dred (100)  square  feet,  or  which  are  of  greater  height 
than  ten  (10)  feet  above  the  surface  of  the  ground 
(other  than  such  signs  or  bill-boards  as  are  painted  or 
erected  upon  buildings),  shall  pay  an  annual  license  on 
the  first  day  of  July  of  each  year,  at  the  rate  of  fifty 
(50)  cents  per  square  foot;  and  in  case  of  failure  to 
pay  such  annual  license  within  thirty  (30)  days  of 
July  1st  of  each  year,  such  signs  or  bill-boards  shall  be 
torn  down  by  the  fire  department  under  the  directions 
of  the  Commissioner  of  Buildings. 

Section  6.  Any  person,  firm,  company  or  corpora- 
tion who  violates,  disobeys,  omits,  neglects  or  refuses 
to  comply  with,  or  who  resists  or  opposes  the  execu- 
tion of  any  of  the  provisions  of  this  ordinance,  shall 
be  subject  to  a fine  of  not  less  than  five  ($5.00)  dollars 
per  day,  nor  more  than  fifty  ($50.00)  dollars  per  day; 
and  every  such  person,  firm,  company  or  corporation 
shall  be  deemed  guilty  of  a separate  offense  for  every 
day  such  violation,  disobedience,  omission,  neglect  or 
refusal  shall  continue,  and  shall  be  subject  to  the  pen- 
alty imposed  by  this  Section  for  each  and  every  such 
separate  offense,  and  any  builder  or  contractor  who 
shall  construct  any  sigh  or  bill-board  on  vacant  prop- 
erty in  violation  of  any  of  the  provisions  of  this  or- 
dinance shall  be  subject  to  a like  fine. 

Section  7.  This  ordinance  shall  be  enforced  from 
and  after  its  passage. 

In  discussing  the  provisions  of  this  ordinance  and 
18 


illustrating  its  reasonable  terms  and  conditions  we  can 
do  no  better  than  use  the  language  of  Master  in  Chan- 
cery Mr.  G.  Fred  Rush,  in  his  report  to  the  court  of 
his  findings. 

Mr.  Rush  gave  a great  deal  of  attention  to  this  case 
and  expended  a vast  amount  of  time  in  searching  the 
authorities  before  finally  making  his  report,  and  his 
opinion  is  entitled  to  great  consideration  by  the 
courts  and  by  all  laymen  interested  in  the  subject  of 
bill-boards. 

He  quotes  the  following  powers  of  the  City  Council: 

Sixty-first. — To  prescribe  the  thickness,  strength  and 
manner  of  constructing  stone,  brick  and 
other  buildings,  and  the  construction  of 
fire  escapes  therein. 

(May  be  relevant  to  the  manner  of  con- 
structing the  bill-boards.) 

Sixty-second. — For  the  purpose  of  guarding  against  the 
calamities  of  fire,  to  prescribe  the  limits 
within  which  wooden  buildings  shall  not 
be  erected  and  placed  or  repaired  with- 
out permission. 

(Maybe  relevant  to  the  material  out  of 
which  bill-boards  are  constructed.) 

Sixty-sixth. — To  regulate  the  police  power  of  the  city 
or  village  and  pass  all  necessary  police 
ordinances. 

Seventy- fifth. — To  declare  what  shall  be  a nuisance  and 
to  abate  the  same;  and  to  impose  fines 
upon  parties  who  may  create,  continue  or 
suffer  nuisances  to  exist. 

Seventy-eighth. — To  do  all  acts,  make  all  regulations 
which  may  be  necessary  or  expedient  for 


19 


the  promotion  of  health  or  the  suppression 
of  disease. 

And  then  says: 

“ Under  its  police  powers,  even  if  not 
under  more  specific  statutory  power,  the  defen- 
dant city  was  plainly  authorized  to  pass  ordi- 
nances on  the  subject  matter  of  signs  and 
bill-boards  possessing  features  that  actually 
menace  the  public  safety  and  health  as  afore- 
said. The  validity  of  the  several  provisions 
of  these  ordinances,  therefore,  depends  upon 
whether  or  not  their  provisions,  or  any  of 
them,  are  manifestly  unreasonable  or  oppress- 
ive, or  unwarrantably  invade  private  rights, 
or  clearly  transcend  the  powers  granted  by 
statute  to  this  city,  or  violate  the  constitu- 
tion of  the  state  or  nation. 

We  will  now  examine  this  ordinance 
phrase  by  phrase: 

Section  i.  * All  signs  or  billboards  other 
than  those  painted  or  erected  upon  any 
building.’ 

There  is  no  sufficient  reason  given  why 
signs  on  buildings  should  also  be  restricted 
and  regulated  by  this  ordinance.  The  City 
Council  deemed  it  sufficient  to  regulate  signs 
and  bill-boards  on  the  surface  of  the  ground. 

The  ordinance,  as  to  the  phase  under  con- 
sideration, operates  uniformly  and  equally 
upon  all  persons  and  things  brought  within  its 
provisions.  It  treats  all  surface  owners  alike. 

The  City  Council  may  have  taken  into  con- 
sideration the  fact  that  Section  206  of  the  build- 
ing code  requires  that  signs  on  buildings  be  of 


20 


incombustible  material,  and  that  wooden 
signs  be  not  more  than  2 feet  wide.  This  re- 
striction has  been  generally  enforced  except 
in  the  few  cases  of  low  sheds  where  bill-boards 
existed  in  violation  of  Section  206  of  the 
building  code.  The  classification  made  by 
the  City  Council  cannot  be  said  to  be  so  with- 
out reason  as  to  be  arbitrary — it  rests  upon  a 
reasonable  basis. 

To  continue  the  language  of  the  ordi- 
nance: 

‘Shall  be  limited  in  their  superficial  area 
to  ioo  square  feet.* 

This  is  a reasonable  and  proper  regulation, 
made  for  the  purpose  of  reducing  the  wind 
pressure,  thus  lessening  the  danger  to  life  in 
the  case  of  severe  windstorms.  Permanent 
buildings  are  regulated  so  as  to  resist  wind 
pressure.  Why  should  not  temporary  signs 
and  bill-boards  be  so  regulated  ? It  is  authorized 
under  the  police  power. 

‘And  shall  be  constructed  of  sheet  or  gal= 
vanized  iron,  or  some  equally  incombustible 
material/ 

This  is  a reasonable  and  proper  regulation 
for  the  purpose  of  guarding  against  the  ca- 
lamity of  fire,  and  is  authorized  under  the  62d 
clause  and  under  the  police  power. 

* And  such  signs  and  bill-boards  shall  not 
be  located  nearer  than  25  feet  back  of  the 
front  line  of  the  lot  whereon  the  same  is  to 
be  erected.’ 

The  chief  danger  to  the  public  is  not  only 


21 


the  prostration  of  the  boards  across  the  walk 
in  high  winds,  but  their  necessarily  thin, 
sheet-like  structure  makes  them  peculiarly 
liable  to  be  carried  by  the  force  of  the  wind. 
The  danger  can  be  lessened  by  diminishing 
the  size  of  the  boards  and  by  setting  the 
boards  back  a reasonable  distance.  Is  25  feet 
such  a reasonable  distance?  Considering  the 
fact  that  a later  phrase  of  this  ordinance  per- 
mits the  boards  to  be  10  feet  high,  some  defi- 
nite distance  must  be  adopted,  and  it  cannot 
be  said  that  25  feet  is  an  unreasonable 
distance.  This  regulation  has  not  the  effect 
of  depriving  persons  of  the  use  of  a part  of 
their  property  without  due  process  of  law.  It 
deprives  persons  of  the  right  to  erect  danger- 
ous and  unsafe  structures  on  such  part  of  their 
land  as  will  endanger  the  public  safety.  It 
deprives  them  merely  of  the  right  to  misuse 
their  land,  and  the  regulation  is  pursuant  to 
statutory  authority  known  as  the  police  power. 

It  is  well  known  that  wooden  sheds  are 
restricted,  not  only  in  size,  but  are  required  to 
be  put  on  the  rear  part  of  the  lot.  Regula- 
tions of  local  legislative  bodies  to  promote 
the  safety  and  health  of  the  public  are  of  great 
importance  to  the  people,  and  courts  will 
interfere  only  when  such  regulations  are  mani- 
festly unreasonable  and  unauthorized. 

‘Provided,  that  signs  not  to  exceed  12 
square  feet  each  may  be  made  of  wood,  but 
such  signs  shall  in  all  respects  comply  with 
the  above  provision/ 

No  objection  has  been  urged  against  this 
provision. 


22 


Section  2.  ‘No  such  sign  or  bill-board  shall 
be  constructed  a greater  height  than  10  feet 
above  the  level  of  the  adjoining  streets.’ 

The  restriction  above  mentioned  to  one 
hundred  square  feet  would  be  incomplete 
without  a limitation  on  the  height  of  the 
board,  because  said  restriction  would  still  per- 
mit, for  instance,  a board  50  feet  high  and  2 
feet  wide,  which  would  be  exceedingly  danger- 
ous. It  is  a necessary  and  reasonable  regula- 
tion authorized  under  the  police  power. 

* And  the  base  of  the  sign  or  bill-board 
shall  be,  in  all  cases,  at  least  3 feet  above  the 
level  of  the  adjoining  street.* 

The  plain  purpose  of  this  provision  is  to 
enable  people  to  see  under  the  boards  from 
the  public  highways,  in  order  that  the  sign  or 
bill-board  may  not  be  a screen  favoring  the 
commission  of  personal  nuisance,  or  other 
immoral  acts,  and  in  order  that  these  boards 
may  not  be  a convenience  for  footpads  or 
criminals  as  a hiding  or  lurking  place.  Un- 
like fences  and  houses,  bill-boards  near  the 
walk  permit  of  easy  access  to  their  rear. 
This  is  a reasonable  regulation  authorized 
under  the  police  power. 

< In  case  the  grade  of  adjoining  streets  has 
not  been  established,  no  sign  or  bill-board 
shall  be  constructed  at  a greater  height  than 
10  feet  above  the  surface  of  the  ground.’ 

This  is  based  upon  the  same  reasons  as  the 
beginning  of  Section  2. 


23 


Section  3.  ‘No  such  sign  or  bill-board 
shall  be  erected  within  five  feet  of  any  other 
sign  or  bill-board,  and  each  such  sign  or  bill- 
board shall  have  independent  support.* 

The  new  construction  under  Section  1 of  this 
ordinance,  being  of  sheet  or  galvanized  iron, 
a new  reason  arises,  making  it  necessary  to 
break  the  continuity  of  the  boards  so  as  to 
prevent  these  boards  from  conducting  light- 
ning, or  equally  dangerous  electricity,  by 
means  of  crossed  wires,  a danger  becoming 
more  and  more  frequent  in  this  electrical  age. 
It  is  well  known  that  every  storm  precipitates 
wires,  crossing  them  with  trolley  or  electric 
light  wires,  whose  deadly  currents  are  thus 
made  to  lurk  in  unexpected  places.  This  is 
not  a remote  or  fanciful  danger  when  it  is  con- 
sidered that  this  complainant  company  has 
about  2j  miles  of  these  boards. 

But  this  five-foot  space  interval  is  still  more 
important  in  lessening  the  surface  of  the 
boards  and  providing  for  the  relief  of  wind 
pressure  in  storms,  and  this  provision  also  re- 
quires more  strength  in  the  supports  and  in- 
sures that  the  same  are  independent. 

Recognizing  that  these  temporary  struct- 
ures are  not  susceptible  of  permanent  and  safe 
building  construction  which  would  be  suitable 
for  other  purposes,  the  Council  has  handled  the 
subject  in  a practical  way  to  prevent  this 
danger,  demolition  by  wind.  To  this  end  it 
has  limited  the  height;  it  has  set  the  boards 
back  from  the  street  (thus  permitting  them  to 
be  higher  than  if  set  near  the  sidewalk);  it 
has  limited  the  area,  and  finally  to  make  effect- 


24 


ive  this  limitation  of  area  and  to  strengthen  the 
boards,  it  has  limited  the  boards  laterally  by 
insisting  upon  five-foot  intervals  and  inde- 
pendent supports. 

Thus  Section  3 cannot  be  said  to  be  un- 
reasonable and  is  warranted  under  the  police 
power.” 

From  the  foregoing  it  will  be  seen  that  Mr.  Rush, 
Master  in  Chancery,  has  held,  in  forcible  and  pertinent 
language,  that  Sections  1,  2 and  3 of  the  foregoing  or- 
dinance are  valid  and  reasonable  and  entirely  within 
the  police  power  of  the  City  Council  to  pass.  These 
sections  comprise  the  main  features  of  the  ordinance, 
and  with  the  exception  of  Section  4 clearly  show  what 
the  City  of  Chicago  and  its  citizens  desire  in  the  way 
of  a bill-board  ordinance.  This  is  by  no  means  ruining 
the  business  of  the  bill-board  companies,  but  merely 
regulating  the  immense  boards  in  a reasonable  and 
proper  manner. 

Section  4 of  the  ordinance  is  of  great  importance 
to  the  city.  It  is  the  section  that  provides  that  no  bill- 
board shall  be  erected  on  any  residence  street  unless 
the  consent,  in  writing,  of  three-fourths  of  the  resi- 
dence and  property  owners  is  first  obtained. 

The  Master  held  this  section  void  for  the  reason 
that  it  discriminates  between  different  localities  of  the 
city.  We  admit  that,  under  the  law  as  it  is  at  present, 
the  validity  of  this  section  is  doubtful,  but  we  insist 
that  this  is  a reasonable  and  proper  regulation.  It  is 
just  and  right  that  the  people  should  have  a voice  in 
this  matter  when  it  so  nearly  affects  their  safety  and 
the  beauty  of  the  locality  in  which  they  live. 

The  Master  holds  that  Section  5 of  the  ordinance 
is  invalid  for  the  reason  that  its  terms  are  unreason- 
able, the  evidence  showing  that  the  license  fee  re- 


25 


quired  would  amount  to  an  immense  sum  per  annum. 
We  admit  that  this  is  correct,  but  the  fault  is  easily 
remedied. 

The  Master  holds  Section  6 to  be  valid  and  reason- 
able. 

In  the  course  of  his  report  Mr.  Rush  uses  the 
following  language: 

“The  construction  of  these  boards  would 
be  fairly  safe  and  substantial  for  a board  not 
to  exceed  ten  feet  in  height.  They  are  not 
safe,  nor  substantial,  not  permanent  when 
their  height,  continuity  and  situation  are 
taken  into  consideration.  The  necessity  of 
keeping  the  front  of  these  boards  free  of  ob- 
struction makes  those  near  the  public  walks 
more  liable  to  fall  over  the  walks  than  to  fall 
backward  when  the  uprights  break  or  wear 
or  rot  attacks  them,  and  their  sheet-like 
structure  makes  them  peculiarly  liable  to  be 
blown  some  distance  by  a high  wind. 

The  bill-boards  of  complainant,  built  of 
combustible  materials;  more  than  ten  feet 
high;  of  continuous  length;  situated  within 
25  feet  of  the  public  sidewalk  line  on  many  of 
the  most  traveled  thoroughfares,  and  built 
nearer  the  ground  than  three  feet,  constitute 
a public  danger  as  a source  and  communica- 
tion of  fire  and  conflagration,  and  constitute 
a danger  to  the  public  safety  in  the  event  of 
severe  windstorms,  and  they,  indirectly,  pro- 
duce danger  to  the  public  health  from  the 
personal  refuse  deposited  behind  them. 

For  the  reasons  stated,  the  bill-boards,  as 
described,  constitute  public  nuisances.” 


26 


The  immense  wooden  bill-boards  now  defacing  the 
city  and  every  boulevard  and  park  were  erected  and 
are  now  maintained  in  violation  of  law.  A great 
many  of  them  were  erected  by  false  and  fraudulent 
permits  obtained  by  devious  methods. 

Judge  Chetlain  of  the  Superior  Court,  in  deciding 
the  case  of  the  American  Posting  Service  against  the 
City  of  Chicago,  a case  in  all  respects  similar  to  the  pres- 
ent case,  and  commenced  for  precisely  the  same  pur- 
pose, uses  the  following  language  in  dismissing  the 
suit  and  denying  the  relief  prayed  for: 

“ What,  then,  is  the  situation  of  this  case,  as 
I view  it  ? The  complainant  is  maintaining , in 
violation  of  law , certain  structures,  and  appeals 
to  a court  of  equity  to  protect  it  in  the  enjoy- 
ment and  use  of  these  structures,  in  direct 
violation  of  the  terms  of  what  I have  held  to 
be  in  part  a valid  ordinance.  I do  not  deem  it 
necessary  to  further  inquire  into  the  question 
of  how  far  the  city  is  authorized  to  proceed  in 
the  destruction  of  these  structures.  The  ques- 
tion which  I must  first  determine  is,  has  the 
complainant  any  rights  which  are  in  equity 
and  good  conscience  entitled  to  the  protection 
of  this  court?  I feel  compelled  to  answer  this 
question  in  the  negative.  Until  instructed  by 
the  superior  wisdom  of  some  court  above  this 
court  in  authority,  I shall  hold  that,  in  a court 
of  equity,  the  party  engaged  in  an  illegal  en- 
terprise is  entitled  to  no  relief  necessary  to 
its  successful  operation.  Those  who  successfully 
defy  the  law  may  possibly  enjoy  many  advantages 
under  the  ancient  maxim,  melior  est  coiiditio 
defendantis , who  when,  as  actors,  they  apply 


27 


for  relief  in  equity,  their  alleged  rights  should 
be  subjected  to  a zealous  scrutiny.  If  assert- 
ed contrary  to  law,  a court  of  chancery  has  no 
authority  to  interpose  for  their  preservation. 

To  do  so  is  neither  justified  by  the  principles 
of  sound  morality  nor  an  enlightened  public 
policy.  A firm  insistence  by  the  courts  in  en- 
forcing the  law  in  this  regard  will  do  much  to 
correct  many  evils  of  which  there  is  just  and 
great  complaint.  He  who  obeys  the  law  must 
be  protected  by  the  law;  but  he  who  acts  outside 
of  it  should  not  expect  a chancellor  to  aid  him  to 
prostrate  and  defeat  it. 

“This  court  can  afford  complainant  no  re- 
lief. The  prayer  for  injunction  will,  therefore, 
be  denied  and  complainant’s  bill  dismissed.” 

This  decision  was  rendered  some  time  ago  and  the 
complainant  prayed  an  appeal.  Its  attorneys  have 
done  nothing  towards  perfecting  this  appeal  to  the 
higher  courts,  but,  instead,  have  appeared  in  the  present 
case  and  given  aid  to  the  Gunning  System  by  their 
voices  and  presence  throughout  the  oral  argument,  in 
the  hope  that  they  might  derive  some  comfort  and  help 
from  the  decision  of  another  court  of  concurrent  juris- 
diction. 

Is  the  great  City  of  Chicago  helpless  in  this  matter? 

No,  a thousand  times  no. 

As  well  say  a physician  of  national  repute  is 
powerless  to  cure  a sore  thumb. 

There  is  no  such  thing  as  a vested  right  in  any  of 
these  wooden  bill-boards.  They  have  been  and  are  being 
erected  by  fraud  and  in  direct  violation  of  the  law,  and 
are  being  maintained  in  violation  of  laws  as  solemn 
and  of  as  much  potency  as  acts  of  the  legislature. 


28 


The  permits  issued  by  the  City  of  Chicago  for  the 
erection  of  some  of  these  bill-boards  are  mere  licenses, 
revocable  at  the  pleasure  of  the  city. 

One  of  the  most  familiar  doctrines  in  a court  of 
chancery  is  that  the  party  asking  for  relief  must  come 
into  court  with  clean  hands. 

The  dirtiest  pair  of  hands  ever  exposed  in  a court 
of  equity  are  held  up  by  the  complainant  in  this  case. 

It  is  doing  business  in  violation  of  the  law.  It  has 
erected  and  is  maintaining  its  bill-boards  in  violation 
of  the  law,  and  has  obtained  so-called  permits  from  the 
building  department  by  fraudulent  and  devious  meth- 
ods for  the  erection  of  fences , and  under  these  permits, 
issued  merely  to  blind  the  citizens  of  Chicago  and  the 
residents  of  a particular  neighborhood,  have  erected 
frame  bill-boards,  in  some  instances,  24  feet  in  height 
and  as  long  as  the  length  of  the  vacant  lot  on  which 
they  are  built  will  permit. 

It  is  doing  now,  and  has  been  doing  for  years,  that 
which  the  law  would  not  permit  any  private  person 
to  do. 

Any  court  of  chancery  in  Cook  County  had  better 
pause  and  deeply  reflect  before  it  throws  its  protecting 
arm  around  the  complainant  in  this  case. 

If  a court  of  equity  enters  an  order  for  a permanent 
injunction  forever  restraining  the  City  of  Chicago  from 
interfering  with  these  bill-boards,  then  well  may  the 
citizens  of  Chicago  lose  hope. 


29 


BRIEF 


I. 

He  who  comes  into  a court  of  equity  must  come 
with  clean  hands. 

Bispham’s  Equity,  2d  ed.,  p.  60. 

Winslow  vs.  Noble,  101  111.  194. 

Kassing  vs.  Durant,  41  111.  App.  93. 

Commercial  N.  Bank  vs.  Bench,  141  111.  519. 

II. 

He  who  seeks  equity  must  do  equity. 

Bispham’s  Equity,  2nd  ed.,  p.  61. 

Bates  vs.  Wheeler,  1 Scam.  34. 

Carver  vs.  Lasater,  36  111.  183. 

Winslow  vs.  Noble,  101  111.  194. 

Com.  Nat.  Bank  vs.  Bench,  141  111.  519. 

III. 

Comparison  of  charter  powers  of  City  of  Roches- 
ter, N.  Y.,  with  City  of  Chicago. 

Rochester  vs.  West,  56  N.  E.  Rep.  673. 

IV. 

It  is  a well-settled  rule , both  in  England  and 
America,  that  a court  of  equity  has  no  jurisdiction 
to  interfere  by  injunction  to  restrain  a criminal 
prosecution,  whether  the  prosecution  be  for  violation 
of  statutes  or  the  infraction  of  municipal  ordinances. 
It  is  not  within  the  power  of  the  parties  to  waive  the 

3i 


question  relating  to  the  jurisdiction  of  the  court  and 
corrvpel  it  to  try  the  cause . 

If  the  prosecution  is  under  an  ordinance , no 
ground  for  enjoining  it  is  constituted  by  the  fact  that 
the  ordinance  is  void. 

A.  & E.  Encyclopaedia  of  Law,  vol.  16,  pp.  370-1. 

“ “ vol.  10,  p.  914. 

High  on  Injunctions,  sec.  700. 

Chicago  P.  S.E.  vs.  McClaughrey,  148  111.372. 

Chicago  vs.  Wright,  69  111.  318. 

Poyer  vs.  Desplaines,  123  111.  114. 

Moses  vs.  Mobile,  52  Ala.  198. 

Jones  vs.  Oil  Co.,  17  111.  App.  114. 

C.  B.  & Q.  R.  R.  vs.  Ottawa,  148  111.  400. 

Phillips  vs.  Stone  Mountain,  61  Ga.  386. 

Pierce  vs.  Little  Rock,  39  Ark.  412. 

Gaestner  vs.  Fond  du  Lac,  34  Wis.  497. 

Chicago  vs.  Collins,  176  111.  9. 

Chicago  vs.  Wilkie,  88  111.  App.  316. 

y. 

The  legality  or  illegality  of  the  ordinance  is 
purely  a question  of  law  which  the  common -law 
court  is  competent  to  decide. 

Poyer  vs.  Desplaines,  123  111.  114,  115. 


32 


ARGUMENT 


I. 

Bispham  in  his  treatise  on  the  Principles  of  Equity 
in  the  chapter  devoted  to  Maxims  says: 

“He  who  comes  into  equity  must  do  so 
with  clean  hands;  or  as  the  maxim  has  been 
otherwise  expressed,  ‘He  that  hath  committed 
iniquity  shall  not  have  equity.”' 

This  is  an  old  doctrine  recognized  in  all  courts. 

In  the  case  of  Winslow  vs.  Noble,  101  111.,  194,  the 
court  uses  the  following  language: 

“There  is  another  well-established  rule  in 
equity  which  ought  not  to  be  overlooked  in  a 
case  of  this  character,  which  is,  that  a party 
must  come  into  a court  of  equity  with  clean 
hands,  otherwise  his  bill  will  be  dismissed.” 
(Thorp  vs.  McCullum,  1 Gilm.,  614.) 

Again  in  the  case  of  Com.  Nat.  Bank  vs.  Burch,  141 
111.,  530,  the  court  say: 

“On  the  contrary,  the  Kalamazoo  Paper  Co. 
comes  into  a court  of  equity  and  seeks  affirm- 
ative relief  in  its  own  behalf.  To  entitle  it  to 
such  relief  it  must  come  with  clean  hands  and 
be  prepared  to  do  equity.  A party  will  not  be 
permitted  to  come  into  a court  of  equity  to 
enable  him  to  reap  the  fruits  of  fraud.” 

The  Gunning  System  is  in  this  court  seeking  affirm- 
ative relief,  and  under  the  circumstances,  as  set  forth 


33 


in  our  argument  on  the  facts,  this  old  and  well  estab- 
lished rule  should  not  be  overlooked  in  this  case.  It  is 
a violator  of  the  law  and  has  the  fortitude  to  come  into 
this  court  and  ask  that  the  municipal  authorities  be 
prevented  from  executing  that  law. 

II. 

He  who  seeks  equity  must  do  equity. 

The  legal  definition  of  the  word  “equity”  is  “equal- 
ity of  right;  exact  justice  between  contending  parties; 
fairness  in  determining  conflicting  claims;  justice.” 

Why  did  the  complainant  in  this  case  make  ar- 
rangements with  the  building  commissioner  for  the 
issuing  of  illegal  permits?  Were  these  permits,  for 
fences,  used  for  the  purpose  of  deceiving  the  police 
department?  or  for  the  purpose  of  committing  a fraud 
on  the  residents  of  certain  localities  where  the  com- 
plainant desired  to  erect  bill-boards?  Has  the  com- 
plainant been  just,  upright,  fair  between  man  and  man 
and  fair  to  the  city?  These  are  pertinent  inquiries. 

If  not,  then  it  is  not  entitled  to  any  relief  in  a court 
of  equity. 

III. 

In  the  case  of  Rochester  vs.  West,  56  N.  E.  Rep.,  673, 
the  Court  of  Appeals  of  New  York  held  that  the  Coun- 
cil had  authority,  under  its  charter,  to  regulate  the 
height  of  bill-boards,  so  far  as  such  regulation  was 
necessary  to  the  safety  of  inhabitants  and  passers-by. 

The  full  report  of  this  case  follows: 

“1.  Under  Rochester  city  charter  (Laws 
1880,  c.  14,  sec.  40,  subd.  21,  as  amended  by 
Laws  1894,  c.  28,  sec.  9),  authorizing  the  city 
to  license  and  regulate  bill-posters  and  sign- 


34 


advertising,  and  to  prescribe  the  terms  and 
conditions  on  which  any  such  license  should 
be  granted,  the  Council  had  authority  to  regu- 
late the  height  of  bill-boards,  so  far  as  such 
regulation  was  necessary  to  the  safety  of  in- 
habitants and  passers-by. 

2.  The  statute,  being  intended  to  allow  the 
Council  to  provide  for  the  welfare  and  safety  of 
the  community,  was  within  the  police  power  of 
the  legislature. 

3.  Where  a statute  was  enacted  to  prevent 
injury  to  the  people  at  large,  the  fact  that  no 
injury  had  occurred,  or  is  likely  to  occur,  is 
not  controlling  on  the  question  of  its  validity, 
which  is  to  be  determined  by  its  general  pur- 
pose, and  its  efficiency  to  effect  that  end. 

4.  An  ordinance  prohibiting  the  erection 
of  bill-boards  exceeding  six  feet  in  height 
without  the  permission  of  the  Council  is  not  an 
unreasonable  and  undue  restraint  of  a lawful 
business,  or  of  the  lawful  use  of  private  prop- 
erty; being  intended  to  provide  for  the 
safety  of  the  community. 

Appeal  from  Supreme  Court,  Appellate 
Division,  Fourth  Department. 

Robert  West  was  convicted  in  the  police 
court  of  Rochester  of  violating  a city  ordinance 
regulating  bill-posting  and  appealed.  On 
affirmance  by  the  County  Court  (51  N.  Y. 
Supp.,  482),  accused  appealed  to  the  Appellate 
Division,  which  affirmed  the  judgment.  53 
N.  Y.  Supp.,  1101.  Appeal  on  certified  ques- 
tions from  the  Appellate  Division,  Affirmed 

The  defendant  is  the  local  manager  of  a 
corporation  known  as  the  ‘Rochester  Bill 


35 


Posting  Company’  and  was  arrested  April 
SOth,  1897,  charged  with  the  violation  of  Sec- 
tions 8 and  9 of  an  ordinance  of  the  City  of 
Rochester,  entitled  ‘An  ordinance  relating  to 
bill-posting  and  bill-boards,’  adopted  by  the 
common  council  of  the  city  December  22, 
1896.  These  sections  are  as  follows: 

‘Section  8.  No  person  shall  hereafter 
erect  any  bill-board  more  than  six  feet  in 
height  within  the  City  of  Rochester  without 
permission  of  the  common  council.  Every 
applicant  for  permission  to  erect  a bill-board 
more  than  six  feet  in  height  within  said  city  is 
required  to  give  one  week’s  notice  in  writing, 
personally  or  by  mail,  of  such  application  to 
the  owners,  occupants  or  agents  of  all  houses 
and  lots  within  a distance  of  two  hundred  feet 
from  where  such  bill-board  is  to  be  erected. 
No  such  application  shall  be  considered  by 
the  common  council  without  verified  proof  of 
the  service  of  the  notice  herein  described,  or 
the  written  consent  of  such  owners,  occupants 
or  agents  to  the  erection  of  said  bill-board. 

Section  9.  No  fence  or  other  structure 
within  said  city  shall  be  used  as  a bill-board 
without  the  consent  of  the  common  council. 
The  same  notice  and  proof  required  by  Section 
8 of  this  ordinance  shall  be  necessary  to  obtain 
the  consent  of  the  common  council  to  use  such 
fence  or  structure  as  a bill-board. 

Section  10  provides  for  a time  in  case  of 
the  violation  of  any  of  the  provisions  of  the 
ordinance. 

It  is  admitted  that  the  defendant  on  April 
26th,  1897,  erected  a bill-board  more  than  six 

36 


feet  in  height  on  premises  fronting  on  Lake 
Avenue  between  White  and  Spencer  Streets, 
and  back  of  the  street  line,  without  taking  any 
of  the  steps  provided  for  by  the  foregoing 
ordinance.  It  was  also  conceded  that  ‘ such 
bill-board  was  erected  upon  land  leased  by 
the  said  Rochester  Bill  Posting  Company,  and 
that  such  bill-board  was  well  constructed,  of 
new  material,’  and  ‘that,  out  of  six  thousand 
posters  put  up  each  week  for  forty  weeks  of 
the  year,  not  more  than  four  hundred  would 
go  upon  a bill-board  six  feet  high.’  The  case 
was  submitted  to  the  police  justice  upon  these 
facts,  no  other  testimony  being  taken,  and  on 
June  4th  judgment  was  entered  against  the 
defendant  for  the  sum  of  five  dollars.  On  ap- 
peal the  County  Court  affirmed  the  judgment. 
The  appellate  division  affirmed  the  judgment 
of  the  County  Court,  and  allowed  an  appeal 
to  this  court,  certifying  the  following  ques- 
tions: ‘First,  whether  or  not  the  common 
council  of  the  City  of  Rochester  has  authority, 
under  subdivision  21  of  Section  40  of  its  char- 
ter, to  pass  the  ordinance  under  consideration 
in  this  case.  Second,  whether  or  not  the  or- 
dinance in  question  is  not  an  unreasonable 
and  an  undue  restraint  upon  a lawful  trade  and 
business,  and  also  a restraint  upon  the  lawful 
and  beneficial  use  of  private  property.’ 

John  R.  Fanning,  for  appellant.  P.  M. 
French,  for  respondent. 

Martin,  J.  (after  stating  the  facts).  Wheth- 
er this  appeal  should  be  sustained  depends 
wholly  upon  the  validity  or  invalidity  of  an 
ordinance  of  the  plaintiff  which  forbids  the 


37 


erection,  within  its  limits,  of  bill-boards  more 
than  six  feet  in  height  without  the  consent  of 
the  common  council.  By  its  charter  the 
plaintiff  was  authorized  ‘to  license  and  regu- 
late bill-posters  and  bill-distributors  and  sign 
advertising,  and  to  prescribe  the  terms  and  con- 
ditions upon  which  any  such  license  shall  be 
granted,  and  to  prohibit  all  unlicensed  persons 
from  acting  in  such  capacity.’  Laws  1880,  c. 
14,  sec.  40,  subd.  21,  as  amended  by  laws 
1894,  c.  28,  sec.  9.  We  think  this  statute  con- 
ferred upon  the  common  council  of  the  city 
authority  to  regulate  boards  erected  for  the 
purpose  of  bill-posting,  so  far,  at  least,  as  such 
regulation  was  necessary  to  the  safety  or  wel- 
fare of  the  inhabitants  of  the  city  or  persons 
passing  along  its  streets.  That  is  precisely 
what  the  ordinance  in  question  was  intended 
to  accomplish.  To  regulate  is  to  govern  by, 
or  subject  to,  certain  rules  or  restrictions.  It 
implies  a power^  of  restriction  and  restraint, 
not  only  as  to  the  manner  of  conducting  a 
specified  business,  but  also  as  to  the  erection 
in  and  upon  which  the  business  is  to  be  con- 
ducted. Cronin  vs.  People,  82  N.  Y.,  318,  321. 

Nor  do  we  think  that  the  appellant’s  claim 
that  this  statute  was  unauthorized  can  be  sus- 
tained. It  is  obvious  that  its  purpose  was  to 
allow  the  common  council  to  provide  for  the 
welfare  and  safety  of  the  community  in  the 
municipality  to  which  it  applied.  If  the  de- 
fendant’s authority  to  erect  bill-boards  was 
wholly  unlimited  as  to  height  and  dimensions, 
they  might  readily  become  a constant  and 
continuing  danger  to  the  lives  and  persons  of 


33 


those  |who  should  pass  along  the  street  in 
proximity  to  them.  That  the  legislature  had 
power  to  pass  a statute  authorizing  the  city  to 
adopt  an  ordinance  which,  if  enforced,  would 
obviate  that  danger,  we  have  no  doubt.  Nor 
was  it  in  conflict  with  any  provision  of  the 
state  or  federal  constitution.  The  fact  that 
no  injury  has  occurred  by  reason  of  the 
erection  of  the  bill-board  in  question,  or 
that  it  is  improbable  that  any  such  in- 
jury shall  occur  therefrom,  is  not  control- 
ling upon  the  question  under  consideration. 
The  validity  of  a statute  is  not  to  be  deter- 
mined by  what  has  been  done  in  any  particular 
instance,  but  by  what  may  be  done  under  it. 
Stuart  vs.  Palmer,  74  N.  Y.,  183;  Gilman  vs. 
Tucker,  128  N.  Y.,  L90,  200,  28  N.  E.  1040,  13 
L.  R.  A.  304.  It  is  equally  true  that  the  va- 
lidity of  a statute  or  ordinance  is  not  to  be  de- 
termined from  its  effect  in  a particular  case, 
but  upon  its  general  purpose  and  its  efficiency 
to  affect  that  end.  When  a statute  is  obviously 
intended  to  provide  for  the  safety  of  a com- 
munity, and  an  ordinance  under  it  is  reasonable 
and  in  compliance  with  its  purpose,  both  the 
statute  and  the  ordinance  are  lawful,  and  must 
be  sustained.  Village  of  Carthage  vs.  Freder- 
ick, 122  N.  Y.  268,  25  N.  E.  480;  People  vs. 
Pratt,  129  N.  Y.,  68,  29  N.  E.,  7;  Mayer,  etc.,  of 
City  of  New  York  vs.  Dry-Dock,  E.  B.  & R, 
Co.,  133  N.  Y.,  104;  30  N.  E.  563;  City  of  Roch- 
ester vs.  Simpson,  134  N.  Y.,  414,  31  N.  E.  871; 
People  vs.  Havnor,  149  N.  Y.,  195,  204,  43  N. 
E.,  541,  31  L.  R.  A.  689.  We  are  of  the  opinion 
that  this  ordinance  is  reasonable;  that  the  legis- 


39 


lature  authorized  its  adoption;  that  the  statute 
in  pursuance  of  which  it  was  passed  was  valid; 
and,  consequently,  that  the  defendant’s  appeal 
cannot  be  sustained. 

It  follows  that  the  judgment  appealed  from 
should  be  affirmed.  The  questions  certified  to 
this  court  are  answered  as  follows:  (1)  The 
Common  Council  of  the  City  of  Rochester  had 
authority,  under  its  charter,  to  pass  the  ordi- 
nance under  consideration.  (2)  The  ordinance 
in  question  is  not  unreasonable  or  an  undue 
restraint  of  a lawful  trade  or  business,  nor  a 
restraint  upon  the  lawful  and  beneficial  use  of 
private  property. 

O’Brien,  Bartlett,  Haight,  Vann  and  Lan- 
don,  J.  J.,  concur;  Parker,  C.  J.,  not  sitting. 

Judgment  affirmed,  with  costs.” 

IV. 

We  contend  that  a court  of  chancery  has  no  juris- 
diction in  cases  of  this  character. 

The  leading  case  in  Illinois  on  this  subject  is  Chi- 
cago Public  Stock  Exchange  vs.  McClaughrey, published 
in  the  48th  Illinois  Supreme  Court  Reports,  page  372. 

This  case  was  a bill  of  injunction  filed  against  the 
Superintendent  of  Police  of  the  City  of  Chicago  to  re- 
strain him  from  interfering  with  its  business  of  buying 
and  selling  stocks,  bonds,  grain,  pork  and  produce,  and 
from  interfering  in  its  peaceable  possession  of  the  hall 
where  said  business  was  being  carried  on. 

The  bill  alleged  that  the  defendant,  acting  through 
his  subordinates,  took  forcible  possession  of  said  hall, 
separated  the  wires  which  connected  with  a telegraph 
instrument,  cut  the  wires  running  to  the  electric  lamps, 
and  took  possession  of  and  carried  away  the  private 


40 


letters,  statements,  accounts  and  other  property  of 
complainant  and  others  occupying  said  hall,  and  noti- 
fied such  persons  and  tenants  that  he  would  continue 
to  raid  said  hall  and  carry  away  their  letters,  statements 
and  other  property,  so  long  as  they  should  persist  in 
attempting  to  do  business  in  said  hall ; that  by  reason 
of  such  conduct  the  rental  value  of  said  hall  is  depre- 
ciated and  complainant  could  not  rent  portions  of  the 
same,  to  its  great  and  irreparable  damage, which  damage 
cannot  be  exactly  measured  and  sustained. 

The  defendant,  by  the  city  law  department,  filed  an 
answer  in  which  he  alleged  that  there  was  an  ordinance 
covering  the  business  carried  on  by  complainant  and 
that  he  was  enforcing  that  ordinance. 

The  case  was  appealed  by  the  Stock  Exchange,  and 
the  Supreme  Court,  speaking  through  Mr.  Justice  Ma- 
gruder,  says  : 

44  As  a general  rule,  equity  will  not  enjoin 
the  exercise  of  police  power  given  by  law  to 
the  officers  of  a municipal  corporation,  or  inter- 
fere with  the  public  duties  of  any  of  the 
departments  of  government  or  restrain  pro- 
ceedings in  a criminal  matter.  (Citing  cases.) 

But,  aside  from  this  consideration,  the  bill 
seeks  to  enjoin  the  commission  of  a trespass 
or  of  threatened  trespasses  by  the  same  person 
or  agency,  and  thereby  shows  upon  its  face 
that  complainant  had  a complete  remedy  at 
law.  It  alleges  that  complainant  had  leased  a 
hall  and  fitted  the  same  up  for  a place  where 
brokers  might  meet  to  carry  on  their  business, 
and  for  the  purpose  of  renting  them  desk- 
room,  and  that  it  sublet  desk-room  in  said 
hall  to  various  persons,  and  that  its  sole  busi- 
ness was  the  subletting  of  said  hall,  etc. 


4i 


Hence  the  injury  suffered  would  be  nothing 
more  than  a loss  of  the  fair  rental  value  of  the 
premises  leased.  Whatever  injury  might  be 
done  to  the  business  of  complainant  could  be 
determined  in  an  action  at  law.  The  loss 
suffered  would  be  susceptible  of  compensation 
in  damages.  There  is  nothing  upon  the  face 
of  the  bill  to  show  that  the  injury  to  com- 
plainant would  be  irreparable.  It  is  true,  that 
the  bill  contains  a general  allegation  of  ir- 
reparable damage,  but  there  is  no  allegation 
that  the  defendant  is  insolvent,  or  unable  to 
respond  in  damages  to  the  amount  of  loss 
suffered.  A court  of  equity  will  only  enter- 
tain a bill  to  enjoin  a trespass  to  prevent  a 
multiplicity  of  suits,  or  to  prevent  irreparable 
injury.  It  will  not  interfere  to  prevent  a tres- 
pass upon  the  ground  of  irreparable  injury 
unless  the  facts  and  circumstances  are  alleged, 
from  which  it  can  be  seen  that  irreparable  in- 
jury will  be  the  result  of  the  act  complained 
of,  and  that  there  is  no  adequate  remedy  at 
law. 

To  warrant  interference  upon  the  ground 
of  a multiplicity  of  suits  there  must  be  different 
persons  assailing  the  same  right,  and  not  a 
mere  repetition  of  the  same  trespass  by  the 
same  person,  the  case  being  susceptible  of 
compensation  in  damages.  (1  High  on  Inj., 
sec.  700.)  ‘If  the  right  is  disputed  between 
two  persons  only,  not  for  themselves  alone, 
the  bill  will  be  dismissed.’  (2  Story’s  Eq. 
Jur.,  sec.  857.)  If  the  right  claimed  affects 
numerous  parties,  equity  will  sometimes  enjoin 
a continuance  of  A « igation  because  the 


42 


judgment  against  one  of  the  parties  would  not 
be  binding  on  the  others.  But  where  there 
are  continued  suits  between  two  single  indi- 
viduals, arising  from  the  separate  repetition  of 
trespasses,  equity  will  not  interfere  by  injunc- 
tion where  the  right  has  not  been  established 
at  law,  because  a judgment  in  any  one  of  the 
suits  would  be  evidence  in  all  the  others.  If 
the  right  has  not  been  established  at  law,  the 
necessity  of  intervention  does  not  exist. 
(Moses  vs.  Mayor  of  Mobile,  supra;  Poyer  vs. 
Village  of  Desplaines,  supra;  Pratt  vs.  Kendig, 

128  111.,  293.) 

* * We  are  of  the  opinion,  for  the  reasons 
here  stated,  that  the  want  of  equity  upon  the 
face  of  the  bill  was  properly  taken  advantage 
of  upon  the  hearing,  and  that  there  was  no 
error  in  dissolving  the  injunction  and  dismiss- 
ing the  bill.” 

From  this  decision,  which  has  never  been  reversed 
and  is  the  law  of  Illinois  to-day,  we  perceive  that  there 
are  but  two  exceptions  to  the  rule  that  equity  will  not 
enjoin  the  enforcement  of  an  ordinance  duly  passed  by 
the  City  Council. 

These  two  exceptions  are: 

1.  To  prevent  a multiplicity  of  suits. 

2.  To  prevent  irreparable  injury. 

Let  us  see  whether  the  present  case  comes  within 
either  of  these  exceptions. 


43 


MULTIPLICITY  OF  SUITS. 


In  the  case  last  cited  the  court  say  : 

“ To  warrant  interference  upon  the  ground 
of  multiplicity  of  suits  there  must  be  different 
persons  assailing  the  same  right,  and  not  a 
mere  repetition  of  the  same  trespass  by  the 
same  person.  If  the  right  is  disputed  between 
two  persons  only,  not  for  themselves  and  all 
others  in  interest,  but  for  business  alone,  the 
bill  will  be  dismissed.  Where  they  are  contin- 
ued suits  between  two  single  individuals,  aris- 
ing from  the  separate  repetition  of  trespasses, 
equity  will  not  interfere  by  injunction  where 
the  right  has  not  been  established  at  law.” 

It  is  manifest  that  the  complainant  in  this  case  is 
seeking  to  enjoin  the  interference,  by  the  city,  of  its 
bill-boards,  which  is  a right  disputed  between  two 
persons  only,  viz.:  the  City  of  Chicago  and  the 
Gunning  System. 

Thus  it  is  clear  that  the  present  case  does  not  fall 
within  the  first  exception. 

IRREPARABLE  INJURY. 

Concerning  this  subject  the  Supreme  Court  say  in 
the  same  case: 

“ The  injuries  suffered  would  be  nothing 
more  than  a loss  of  the  fair  rental  value  of 
the  premises  leased.  Whatever  injury  might 
be  done  to  the  business  of  complainant  could 
be  determined  in  an  action  at  law.  The  loss 
suffered  would  be  susceptible  of  compensa- 
tion in  damages.  There  is  nothing  upon  the 


44 


face  of  the  bill  to  show  that  the  injury  to 
complainant  would  be  irreparable.  It  is  true, 
that  the  bill  contains  a general  allegation  of 
irreparable  damage,  but  there  is  no  allegation 
that  the  defendant  is  insolvent,  or  unable  to 
respond  in  damages  to  the  amount  of  loss 
suffered.” 

In  the  present  bill-board  case  the  city  threatened, 
under  an  ordinance  of  the  city,  to  tear  down  large 
wooden  advertising  signs,  erected  and  maintained  in 
violation  of  law. 

In  the  Stock  Exchange  case  the  city  threatened, 
under  an  ordinance,  to  cut  all  wires  and  carry  away 
all  property  used  in  the  business. 

In  the  one  case  the  complainant  rented  the  hall 
and  wires,  in  the  other  the  complainant  rented  the  bill- 
boards. 

The  similarity  of  the  two  cases  could  not  be 
greater,  and  the  court  held,  in  the  Stock  Exchange 
case,  that  whatever  injury  done  to  the  business  of  complain- 
ant could  be  determined  at  law. 

In  the  oral  argument  in  the  case  at  bar  the  court 
intimated  that,  because  property  rights  were  involved, 
therefore  a court  of  equity  would  assume  jurisdiction. 

It  is  worthy  of  note  that  in  the  opinion  of  the  court 
in  the  Stock  Exchange  case,  although  the  facts  show 
that  property  rights  were  assailed,  the  court  failed  to 
touch  upon  this  question,  presumably  holding  that 
this  fact  makes  no  difference  on  the  question  of  juris- 
diction of  a court  of  equity  to  prevent  the  execution, 
by  the  officers  of  a municipality,  of  an  ordinance. 

In  fact,  if  the  law  were  different,  it  would,  in  effect, 
give  a court  of  equity  the  executory  powers  of  a mu- 
nicipality. 


45 


Counsel  for  complainant  argue  that  the  City  of 
Chicago  would  not  be  liable  for  damages  in  the  event 
that  the  officers  of  the  city  tore  down  its  bill-boards, 
but  that  the  complainant  would  be  compelled  to  look 
for  redress  from  the  particular  men  who  actually  per- 
formed the  act  of  demolition,  and  that  therefore  their 
injury  would  be  irreparable. 

They  cite,  in  authority  of  this  position,  the  line  of 
cases  holding  that  the  city  is  not  liable,  in  damages, 
for  the  acts  of  its  policemen  and  firemen. 

These  cases  turn  on  the  theory  that  the  police 
officers  and  members  of  the  fire  department,  although 
appointed  by  the  municipal  corporation,  are  not  agents 
and  servants  of  the  city,  but  they  act  rather  as  officers 
and  agents  of  the  state,  charged  with  a public  service. 

Wilcox  vs.  Chicago,  107  111.,  382. 

In  a case  like  the  one  at  bar  the  City  of  Chicago 
alone  would  be  liable  to  respond  in  damages. 

Underan  ordinance,  duly  passed  by  the  City  Council, 
ordering  the  removal  or  demolition  of  certain  wooden 
structures,  erected  in  violation  of  law,  the  Commissioner 
of  Public  Works  serves  a reasonable  notice  on  the 
owners  of  these  structures,  ordering  their  removal  in  a 
certain  specified  time.  At  the  end  of  this  time,  if  the 
notice  has  not  been  obeyed,  the  city  directs  three  or 
four  day  laborers,  for  instance,  to  tear  down  the 
obnoxious  structures. 

Can  the  city  hide  behind  these  irresponsible 
laborers?  Of  course  not.  The  contrary  would  not  be 
seriously  contended  by  any  lawyer. 

The  city  would  be  liable  just  the  same  if  policemen 
or  firemen  did  the  actual  work. 

If  the  contrary  was  the  law,  all  the  city  would  have 
to  do  to  absolve  itself  from  all  law  suits  and  litigation 
of  this  character,  would  be  to  dress  all  its  workmen  in 


46 


the  uniforms  of  policemen  or  firemen,  and  swear  them 
in  as  such  for  the  time  being. 

The  law  establishes  a rule  called  the  measure  of 
damages  in  this  class  of  cases,  and  under  this  rule  a 
court  of  common  law  could  ascertain  the  damages  to 
complainant,  if  it  were  entitled  to  any  damage,  which 
could  only  be  in  the  event  that  the  ordinance  was  held 
to  be  illegal. 

The  court,  on  the  facts  shown  in  this  case,  cannot 
assume  jurisdiction  under  the  second  exception  to  the 
general  rule  as  above  noted,  and  therefore  the  rule,  as 
handed  down  by  our  Supreme  Court,  which,  until  re- 
versed, is  the  law  of  this  State,  holds  good  and  is  ap- 
plicable to  the  case  at  bar,  that  courts  of  equity  will  not 
enjoin  the  exercise  of  police  power  given  by  law  to  the 
officers  of  a mu?iicipal  corporation  or  interfere  with  the 
public  duties  of  any  of  the  departments  of  government , or 
restrain  proceedings  in  a criminal  matter. 

The  case  of  Poyer  vs.  Village  of  Desplaines,  123 
111.,  Ill,  is  also  directly  in  point. 

The  Village  of  Desplaines  passed  an  ordinance  pro- 
hibiting public  picnics  within  its  limits  and  a bill  was 
filed  to  restrain  the  village  from  enforcing  the  ordi- 
nance. 

The  opinion  was  delivered  by  Mr  Justice  Shope, 
who  says: 

“ Courts  of  equity  will  not,  as  a general 
rule,  interfere  to  restrain  criminal  or  quasi- 
criminal prosecution.  * * * The  legality 

or  illegality  of  the  ordinance  is  purely  a ques- 
tion of  law,  which  the  common  law  court  is 
competent  to  decide.  When  ordinances  have 
been  enacted  by  the  proper  authority,  a court 
of  equity  will  not  interfere  by  injunction  to 


47 


restrain  their  enforcement  in  the  appropriate 
courts  upon  the  ground  that  such  ordinances 
are  alleged  to  be  illegal  or  because  of  the 
alleged  innocence  of  the  party  charged.  * * 

If  the  ordinances  are  invalid,  they  furnish  no 
warrant  for  prosecutions,  or  the  imposition  of 
fines,  or  the  recovery  of  penalties  under  them, 
and  would  be  no  shield  in  an  action  at  law 
against  those  responsible  for  the  injuries  in- 
flicted upon  the  complainant  by  such  prose- 
cutions. If  the  authorities  of  this  village  can 
be  enjoined  from  prosecuting  under  an  ordi- 
nance preservative  of  the  peace  (as  this  one 
certainly  is),  so  they  might  be  restrained  from 
the  enforcement  of  any  other  ordinance  of  the 
village.  Their  efforts  to  discharge  their  duty  to 
the  public  would  be  rendered  unavailing,  and 
the  community  left  at  the  mercy  of  the  lawless 
and  vicious  elements  of  society  until  such 
time  as  the  question  could  be  settled  in  the 
courts  of  equity.  If  it  should  at  last  be  de- 
termined that  the  ordinance  was  valid,  that 
court  would  be  powerless  to  enforce  its  pro- 
visions or  impose  the  penalties  denounced 
against  its  violation,  but  must  remit  the  cases 
to  the  courts  of  law,  which,  before  the  assump- 
tion of  jurisdiction  by  the  courts  of  equity, 
had  the  right  to  determine  every  question 
submitted  to  and  determined  in  the  equity 
jurisdiction. 

In  McCoy  vs.  Chillicothe,  3 Ohio,  379,  it  is 
held  that  the  repetition  of  actions  for  tres- 
passes between  the  same  parties  is  not  that 
multiplicity  of  suits  which  will  induce  a court 
of  equity  to  interfere  by  injunction.  * * * 


48 


If  the  ordinance  is  valid,  as  held  by  the  court 
imposing  the  penalty  mentioned,  equity  will 
certainly  not  interfere  to  protect  the  complain- 
ant from  deserved  punishment  for  its  violation, 
nor  because  the  common-law  court  may  have 
erred  in  his  judgment  as  to  the  complainant’s 
guilt  or  innocence.  Nothing  could  be  more 
detrimental  to  society, and  provocative  of  viola- 
tions of  law,  than  for  courts  of  equity  to  inter- 
fere in  such  cases  by  injunction,  and  thereby 
protect  repeated  acts  in  violation  of  ordinances 
which  might  each  furnish  new  ground  of  com- 
plaint. While  the  injunction  continued  the 
functions  of  municipal  government  would  be 
suspended,  and  irreparable  injury  might  there- 
by ensue.  If  the  municipal  law  be  of  doubtful 
validity  the  complainant  cannot,  by  his  willful 
and  repeated  violation  of  its  provisions,  each 
furnishing  separate  grounds  for  prosecution 
and  depending  upon  separate  facts,  create 
this  ground  for  equitable  interposition  without 
first  settling  the  validity  of  the  ordinance  in 
the  courts  of  law.  If  he  fears  the  prosecution 
of  other  suits  he  can  refrain  from  the  repeti- 
tion of  his  acts  in  violation  of  its  provisions 
until  the  proper  forum  has  determined  its 
validity.” 

Perhaps  it  might  be  thought  that  the  object  and 
character  of  the  particular  ordinance  effected  the  law 
applicable  to  these  cases.  This  is  not  the  fact. 

The  Supreme  Court  has  passed  on  exactly  this  point 
in  the  case  of  C.  B.  & Q.  R.  R.  vs.  Ottawa,  148  111.,  897. 

This  was  a case  brought  to  enjoin  the  City  of  Otta- 
wa from  enforcing  an  ordinance  directing  the  railroad 
company  to  erect  gates  at  crossings. 


49 


After  quoting  freely  from  the  case  of  Poyer  vs. 

Village  of  Desplaines,  supra , the  court  say: 

“If  a court  of  equity  would  not  interfere, 
by  injunction,  in  the  case  last  cited  (Poyer 
case),  why  should  it  do  so  in  this  case? 
There,  as  here,  the  complaint  was  that 
the  ordinance  was  invalid,  and  that  the 
complainant  was  prosecuted,  in  a multi- 
plicity of  suits,  for  the  violation  of  the 
ordinance,  and  that  he  will  suffer  irreparable 
injury  unless  the  suits  are  enjoined.  The 
fact  that  the  offense  for  which  the  prosecution 
were  instituted  in  this  case  is  different  from 
that  in  the  cases  cited  does  not  affect  the  prin- 
ciple involved . There,  as  here,  an  ordinance 
had  been  passed  by  a municipality  providing 
for  the  payment  of  a certain  sum  as  a penalty 
for  a violation  of  the  ordinance,  and  the 
question  was  whether  the  municipal  legisla- 
tion was  valid  or  invalid.  Whether  the  ordi- 
nance related  to  one  subject  or  another  was  a 
question  of  no  special  importance.  What  differ- 
ence can  it  make,  in  reference  to  the  tribunal 
in  which  an  ordinance  shall  be  enforced, 
whether  the  ordinance  relates  to  a nuisance, 
or  whether  it  enjoins  upon  a railroad  company 
a duty  imposed  for  the  protection  of  the  lives 
of  its  citizens?  In  each  case  a penalty  is  im- 
posed for  a violation  of  the  ordinance,  and  no 
reason  is  perceived  why  the  validity  of  that 
penalty  should  in  one  case  be  inquired  into  in 
a court  of  law  and  in  the  other  in  a court  of 
equity.” 

In  the  cases  cited  above,  bills  have  been  filed  in 


5o 


cs  of  equity  to  prevent  the  enforcement  of  ordi- 
.nces  for  illegal  dealing  in  stocks, grains,  etc.;  to  pre- 
/ent  public  picnics  and  to  compel  the  erection  of  gates 
at  railroad  crossings,  and  in  each  case  the  Supreme 
Court  has  held  that  courts  of  equity  have  no  jurisdic- 
tion. 

In  this  case  we  have  a bill-board  ordinance. 

Will  the  courts  make  an  exception  in  favor  of  bill- 
boards? 

No  reason  can  be  assigned  why  they  should  do  so 
In  fact,  the  Supreme  Court,  in  the  C.  B.  & Q.  R.  R.  Co. 
case,  has  explicitly  stated  that  the  ordinance  makes  no 
possible  difference. 

Since  the  filing  of  this  bill  in  March  2j,  1901,  nearly 
two  years  ago,  the  City  of  Chicago  has  been  prevented 
from  enforcing  its  ordinances  in  relation  to  this  matter. 
What  better  illustration  could  be  given  to  the  language 
of  the  Supreme  Court  in  the  Poyer  case  where  the 
court  say:  “Nothing  could  be  more  detrimental  to 
society,  and  provocative  of  violations  of  law,  than  for 
courts  of  equity  to  interfere  in  such  cases  by  injunction, 
and  thereby  protect  repeated  acts  in  violations  of  or- 
dinances which  might  each  furnish  new  grounds  of 
complaint.  While  the  injunction  continued,  the  func- 
tions of  municipal  government  would  be  suspended, 
and  irreparable  injury  might  thereby  ensue.” 

Almost  irreparable  injury  has  ensued  to  our  parks, 
boulevards,  pleasure  driveways  and  residence  streets. 

Our  conclusion  is  that  this  bill  should  be  dismissed, 
first , for  want  of  equity;  second , because  the  complain- 
ant has  not  come  into  court  with  clean  hands;  thirds 
for  lack  of  jurisdiction. 

Respectfully  submitted, 

BYRON  BOYDEN, 

Solicitor  for  defendant  and  Counsel  for  the  Municipal  Art 
League  of  Chicago. 


Hamlin  & Boyden, 
of  Counsel. 


5i 


** VERITY  OF  IIUH.IR1 


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